Municipality Feels the “Butterfly Effect” on its Highway Maintenance Obligations
On April 18, 2024, Justice Adrianna Doyle of the Ontario Superior Court of Justice in Bellville released her decision in The Corporation of the Municipality of Marmora and Lake v. His Majesty the King in Right of Ontario, 2024 ONSC 2254.
This matter concerned an application brought by the Municipality of Marmora and Lake against the Province of Ontario for declaratory relief and advisory opinions outlining its statutory obligations to maintain highways under the Municipal Act and its environmental duties to protect the habitat and feeding grounds of the mottled Duskywing butterfly under the Endangered Species Act, 2007, SO 2007, c 6.
Background:
In 2014, the Province of Ontario placed the mottled Duskywing butterfly (“the butterfly” on the list of endangered species under the regulation of the Endangered Species Act, 2007, SO 2007, c 6. (“ESA”). Sections 9 and 10 of the ESA outline statutory prohibitions on the killing, harming or damage to the habitats of Listed Endangered Species.
Approximately 630 Duskywing butterflies reside in the Town of Marmora. This butterfly is not migratory and hence its entire life cycle takes place on or around certain plant life that grows in abundance in the area. This Duskywing butterfly population near Marmora is the second largest population in Ontario and is the source population for captive-rearing programs designed to try and reintroduce the butterflies to other areas.[1]
The host plants that the butterflies rely upon do not tolerate shade and routinely survive along maintained roadsides, where taller vegetation is cut back to maintain sightlines.
On October 5, 2022, the Municipality was charged with two contraventions of the ESA. In resurfacing some of the roads in the area, a construction crew cleared the vegetation to the base soil and maintenance vehicles were parked on top of the host plants. The road crew also removed a high shoulder of 3-6 feet from the edge of the accumulation, which was an accumulation of built-up winter sand from de-icing. It was alleged that in doing so, it killed, harmed or harassed the butterflies and the host plants. The municipality had not applied for an exception permit under section 17 of the ESA before beginning the project.[2]
Positions of the Parties:
The Municipality:
The Municipality argued that it could not responsibly absorb the liability under the Municipal Act¸ where it compromises reasonable highway maintenance practices due to the regulations/stipulations in the ESA.
It submitted that it was impossible to comply with both the road safety provisions of the Municipal Act and the ESA at the same time, as s.44 of the Municipal Act does not allow a relaxation of the obligations when a species at risk or its habitat is present. Pursuant to s.44(2), a municipality is liable for all damages any person sustains because of the default in complying with its highway maintenance obligations.
The Municipality also argued that by choosing to fulfil its obligation to maintain highways, it risks enforcement and prosecution by the Minister of the Environment, Conservation and Parks (“MECP”) for any effects on the endangered species.
The Municipality was particularly concerned about storm events that impact the highways where the butterfly’s habitat is present. They argued that access to residential lots, hydro utilities and private property could be impacted if the applicant could not perform its usual clean-up functions due to the risk of prosecution.
It sought various declaratory relief for the Court to clearly outline a framework for how the Municipality could navigate and comply with its highway maintenance obligations under s44 of the Municipal Act and the protection of endangered species provisions in the ESA.
The Province
Meanwhile, the Province of Ontario argued that the Court should not exercise its discretion to grant declaratory relief on a number of grounds including;
- That the applicant is seeking a legal opinion and relief that is merely hypothetical, speculative or academic;
- The application is an abuse of process because it is attempting to interfere with the ongoing quasi-criminal proceeding in the Ontario Court of Justice over the violations of the ESA by the Municipality’s road crew.
- That the applicant is attempting to interfere with prosecutorial discretion by requesting a declaration that will immunize itself from criminal liability;
- That the Municipality did not avail itself of the permitting process; and
- that there is no conflict between the ESA and the Municipal Act.
Analysis:
Justice Doyle began her decision by briefly summarizing the state of the case law on the jurisdiction and justiciability for the Court to grant such declaratory relief as requested by the Municipality.
The Court then noted that the Municipality requesting an opinion concerning what is “reasonable” under both Acts and what is required for it to perform its obligations and avoid future liability, did not equate to a declaration to shield itself from civil and criminal liability under the Acts as the Province suggested, even if such a declaration would have that effect.[3]
Next, Her Honour considered whether the grant of declaratory relief was appropriate given that the Municipality had not availed itself of the permitting process under the ESA. Her Honour noted that the evidence filed by the Municipality outlined the challenges it faces in meeting its obligations under both legislative regimes.
However, Justice Doyle found that the issues before the court were not ripe for a declaration as the application had not sought any relief by applying for a permit under the ESA. This permitting process expressly provided a mechanism for the Municipality to obtain some relief from its obligations under the ESA.
Her Honour cited the decision of Ontario (Natural Resources and Forestry) v. South Bruce Peninsula (Town), 2022 ONCA 315, 161 O.R. (3d) 436 (“South Bruce Peninsula”):
[29] The statutory regime creates an absolute prohibition against damage to the habitat of an endangered species but allows the Minister to permit some intrusion where the public interest so requires. The prohibitions are broad, but the exceptions authorized by the Minister are the vehicle through which other social and economic needs are recognized: Wildlands League v. Ontario (Natural Resources and Forestry), 2016 ONCA 741, 134 O.R. (3d) 450, at para. 92.”[4]
Her Honour noted that in both emergency and non-imminent circumstances, the Municipality could have applied for a permit and that such a permit could be obtained relatively quickly (within days). Furthermore, the Municipality could apply for multi-year permits covering an array of exempted activities such as road maintenance.
Given the above, Justice Doyle found that since the Municipality had not availed itself of the permit process, a declaration should not be granted as there was an alternative process provided for in the ESA.[5]
Before concluding her decision, Justice Doyle considered the argument of the Province that the matter was hypothetical, speculative or academic. She disagreed and found that there was a live issue, but that it was not in the Superior Court. She noted that the Municipality’s interest in the interpretation of the statutes arose out of ESA charges against it that were currently being prosecuted in the OCJ.
Her Honour found that within the OCJ action would be a consideration of what the Municipality could have and should have done, and whether it should be found culpable under the quasi-criminal procedure can be determined in that court where the true dispute lies.[6]
Her Honour maintained that it was for the Municipality to seek its desired rulings in the OCJ proceeding and avail itself of any defences, and justifications in the original proceeding or commence appellate proceedings on whatever grounds available to them, as necessary. Justice Doyle found that by bringing this application, the Municipality was attempting to circumvent the quasi-criminal proceeding to obtain a substitute ruling.[7]
Based on the above reasons, Justice Doyle declined to exercise her discretion to grant any declaratory relief sought. The application was dismissed with costs to the Province.
Conclusion and Takeaways:
This decision provided further clarity and guidance on several aspects of seeking declaratory relief inclusive of the jurisdiction, justiciability and grounds for and against granting declaratory relief.
More narrowly, it stood for the proposition that municipalities who are concerned with the allegedly conflicting obligations for highway road maintenance and endangered species protection, should first avail themselves of the permitting process contained within the ESA before seeking alternative forms of relief.
However, the core legal question as to whether there is an inherent incompatibility with the highway maintenance obligations under the Municipal Act and endangered species provisions under the Endangered Species Act¸ remains an open question to be determined in a more appropriate venue with a more appropriate evidentiary record.
[1] The Corporation of the Municipality of Marmora and Lake v. His Majesty the King in Right of Ontario, 2024 ONSC 2254 (CanLII)at paras 1-3.
[2] Ibid, at paras 5-6
[3] Ibid at para 122.
[4] Ontario (Natural Resources and Forestry) v. South Bruce Peninsula (Town), 2022 ONCA 315, 161 O.R. (3d) 436, (South Bruce Peninsula): at para 29.
[5] Marmora, supra note 1, at para 151.
[6] Ibid at paras 155-156
[7] Ibid at para 162.